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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Jackson v Hampshire Hospitals NHS Foundation Trust [2014] EWHC 3954 (QB) (26 November 2014) URL: http://www.bailii.org/ew/cases/EWHC/QB/2014/3954.html Cite as: [2014] EWHC 3954 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 November 2014

Sir David Eady :

1. The facts giving rise to this dispute seem relatively straightforward, but they have spawned a host of legal issues which the Defendant, by the present applications, seeks to narrow and simplify. Ms Wilson, who has argued its case, recognises that even if she succeeds on all her grounds, it will not yet be possible to dispose of the claim in its entirety. She hopes, however, to reduce the scope of the litigation and at least to obtain directions which will avoid the need for a long and expensive trial in the High Court and enable the surviving issues to be resolved more proportionately.
2. The background events can be shortly stated. The Claimant, Mr Jackson, attended the Royal Hampshire County Hospital as an outpatient for two appointments. First, on 7 September 2012, he was admitted because, on the previous day, blood tests had appeared to reveal raised levels of creatinine. That proved to be a false alarm and he was accordingly discharged. Later, on 17 December 2012, he consulted Laura Wines, a physiotherapist, concerning an injury to his foot.
3. In due course, the accuracy of the hospital notes relating to that consultation was challenged. The Claimant alleges that he had told Ms Wines that his symptoms had begun in 2009, whereas she recorded the relevant year as 2010. Ms Wines' supervisor became involved and consulted her. She was apparently told that Ms Wines believed that she had accurately recorded what the Claimant had told her. The supervisor, Ms Rachel Harris, therefore proposed that a statement should be added to the notes recording the difference of recollection. That proposal accords with the practice recommended in the guidance of the National Information Governance Board for Health and Social Care (at paragraphs 2 and 3).
4. It so happened that Ms Harris put this suggestion, not directly to the Claimant, but to a firm of solicitors called Moore Blatch Resolve LLP. She claimed that she did so after trying but failing to contact the Claimant personally. Be that as it may, she obtained the name of the firm which was acting on his behalf in connection with a claim over the foot injury. He objects to her having contacted them, however, on the basis that the firm's authority to act on his behalf was confined to that claim. He denies that she had any occasion to speak to them in connection with the query over the 17 December notes.
5. A number of claims were brought against the Defendant including under the Data Protection Act, libel, slander, negligence and breach of duty and misfeasance in public office. These were made the subject of challenge in the notice of application dated 4 June 2014, which first came before me on 29 July. I then granted the Claimant an adjournment, partly because he said that he was dyslexic and had been given insufficient notice to prepare his case in certain respects, and partly to enable him to amend his Particulars of Claim, if he wished to do so, in order to meet any of the Defendant's complaints.
6. The present position is as follows. The Claimant has sought to amend his Particulars of Claim, partly by altering the basis on which some of his claims were originally framed, partly by abandoning others, and partly by purporting to introduce new causes of action (in respect of which he would need to obtain permission). Ms Wilson has correspondingly adjusted the case to be advanced on the Defendant's behalf. In respect of those claims abandoned, she seeks consequential costs orders. She opposes the introduction of new causes of action. Furthermore, without having incurred the unnecessary additional expense of amending her notice of application, she makes a number of applications in relation to the newly pleaded case relating to the original causes of action.
7. She addressed me first on the defamation claims. There is a claim in slander, based on words allegedly spoken by Ms Harris to a member of staff at Moore Blatch called Ms Waghorn. Those words are pleaded at paragraph 156 of the Amended Particulars of Claim:

"A. That her colleague 'found his manner threatening' and/or;

B. That her colleague 'felt threatened by his behaviour' and/or;

C. That the Claimant was 'threatening'."

8. The natural and ordinary meaning attributed to the words complained of is "that the Claimant had been threatening towards a member of Hospital Staff and/or had conducted himself in a manner which was construed as threatening". For good measure, the Claimant adds a definition of threatening: "having a hostile or deliberately frightening quality or manner".
9. An alternative innuendo meaning is pleaded, albeit somewhat obscurely:

"It is submitted that … the innuendo meaning should be considered, as an employee of the Defendant stating to a third party that their colleague: 'found his manner threatening' and/or 'felt threatened by his behaviour' and/or his behaviour 'was threatening' infers that the Claimant was/had harassed/ victimised/intimidated her colleague Ms Wines."

10. The Claimant also raises a claim in libel, on the basis that the telephone conversation was recorded and that this recording was subsequently heard by another member of staff at Moore Blatch called Mr Timothy Spring.
11. Ms Wilson's first point is that neither of the defamation claims, whether in slander or libel, amounts to a real and substantial tort and that they should be struck out as an abuse of process in accordance with the doctrine explained by the Court of Appeal in Jameel v Dow Jones & Co Inc [2005] QB 946. The application is made in accordance with CPR 3.4(2)(b).
12. There is a separate point raised in relation to the libel claim based on the telephone recording. Ms Wilson referred to the Court of Appeal's decision in Terluk v Berezovsky [2011] EWCA Civ 1534 at [27]-[28]. She argues that there should be no liability in this respect on the part of the Defendant, since there was no way in which Ms Harris, when she spoke to Ms Waghorn, could be taken as authorising or intending re-publication of her words to anyone else; nor were the circumstances such that she ought reasonably to have foreseen onward publication. Whichever is the true test for determining responsibility for onward publication, Ms Wilson submits that the facts here do not enable the Claimant to establish liability against this Defendant. It seems to me that Ms Wilson must be right about that.
13. In any event, she submits in relation to both defamation claims that "the game is not worth the candle" (a phrase adopted by the Court of Appeal both in Jameel and in Cammish v Hughes [2012] EWCA Civ 1655). My attention was drawn to Gatley on Libel and Slander (12^th edn) at para 30.48. The learned editors there make the comment that "while the central principles are now tolerably clear, the precise nature and reach of the jurisdiction is not". Nevertheless, the doctrine is one to which the courts have increasingly resorted in recent years. The editors are almost certainly correct in summarising the underlying rationale as follows:

"The notion that certain proceedings are simply not worth the court time and costs which they entail is very much a product of the new climate engendered by the Civil Procedure Rules."

14. Ms Wilson points out that the publication of the alleged slander can be characterised as technical, to say the least, since there is only one publishee – and she was "in the Claimant's camp". She submits that there is a very close analogy with the circumstances of the very limited publications in the Jameel case itself. The publication was, in effect, to the Claimant's solicitor (although the Claimant himself sought to emphasise two points; namely (i) Ms Waghorn is not actually a solicitor, although she is on the firm's staff, and (ii) the publication had nothing to do with the claim in respect of which the firm had been instructed). Ms Wilson went on to refer to the observations of Tugendhat J in Wallis v Meredith [2011] EWHC 75 (QB), which serve to underline the technical nature of any publication to a claimant's legal representatives:

"I am completely baffled by this. Solicitors constantly write letters which necessarily are defamatory of the opposing party. It is practically impossible in litigation to write a letter is which not defamatory of the opposing party."

These words provide, says Ms Wilson, "a salutary reminder of the reality of a situation like this where a solicitor hears something negative about a client".

15. One is entitled to ask in these circumstances what legitimate objective can be achieved by the outcome of a High Court trial on this limited publication. Is it to be suggested that it is necessary to achieve vindication in the eyes of Ms Waghorn? After all, vindication is what defamation proceedings are supposed to be about. (See e.g. the recent remarks of Sharp LJ in Reed Elsevier UK Ltd v Bewry [2014] EWCA Civ 1411, at [21] and [41].)
16. Rachel Harris wrote to the Claimant in order to explain that, if she used the word "threatening" in the conversation, she was only reflecting her understanding of Ms Wines' reaction to his calls. If it would serve any useful purpose, the Claimant would be able to show that letter to anyone at Moore Blatch. It is important to note that the medical records do not make any reference to the content of the telephone conversation and that there is accordingly no question of any ongoing damage.
17. It is suggested by the Claimant that his relationship with Moore Blatch broke down as a result of the defamatory publication alleged. This is not only implausible: it does not appear to be consistent with matters pleaded in the original version of the Particulars of Claim (including at paragraph 10), or with contemporaneous documents relied upon by him, which would appear to indicate that the relationship broke down as a result of his complaints about the firm.
18. In these circumstances, I would uphold Ms Wilson's submissions that the defamation claim should be struck out.
19. I should add, for the sake of completeness, that the Claimant has relied in his Amended Particulars of Claim (at paragraphs 140-142) upon a plea of special damage which is said to flow from the telephone conversation. This is pleaded in terms of the alleged loss of a chance relating to his earlier claim. He suggests that he might have recovered less by way of damages than would have been the case had he continued to have Moore Blatch acting on his behalf. This obviously depends upon the suggestion that his relationship with the firm broke down as a result of that call. Ms Wilson submits, correctly in my judgment, that this is too tenuous a link and the special damage is too remote.
20. Ms Wilson pursued an application to strike out the allegations of bad faith pleaded in the Particulars of Claim, although they have been reformulated in the amended version. She relies upon the speech of Lord Hope in Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1 at [51] and [55], in support of the principle that any plea of misconduct, fraud, dishonesty or bad faith must be properly supported in the pleading by particulars of the facts relied upon.
21. She accordingly challenges the pleas raised in paragraph 166 of the Amended Particulars of Claim, at B (iv), (v) and (viii) and in C (iii), (iv) and (v). Employees of the Defendant are there accused, variously, of "misleading", "concocting" and "lying". This is all in support of the Claimant's case on breach of duty. Ms Wilson characterises these allegations as "mere assertions" and argues that they are unsupported by particulars.
22. The first three sub-paragraphs relate to Rachel Harris. It is said that she falsely made claims that "countless messages" had been left. This would surely depend on the factual issue of whether such messages were left or not. That is not an issue I can resolve at this stage. So too, the Claimant wishes to dispute that anything occurred which could be legitimately characterised as "threatening" on his part. What he actually said is relevant to the plea that Rachel Harris "concocted" that charge. I do not see that I can dispose of what is, at least in part, a dispute of fact.
23. Again, an accusation that she lied over "leaving a voicemail" cannot be resolved at this stage. The Claimant wishes to adduce evidence to show that he had no such facility and that accordingly her claim could not be true.
24. Mr Spinks is alleged to have "misled" the Claimant as to his data in certain respects and to have "obfuscated" over the release of data. These claims require the court to determine what he said or wrote and then to decide if those terms accurately characterise his conduct. I would agree, however, that there is room for further particularity as to how he is supposed to have "misled" and "obfuscated" although it would be premature to strike out the allegations altogether.
25. The Claimant said that this aspect of the Defendant's application had been "sprung" on him. He will at least now have an opportunity to furnish particulars, so that Mr Spinks knows the case he has to meet.
26. Next, Ms Wilson addressed the Data Protection Act, on which the Claimant relies at paragraphs 118-119 of his Amended Particulars of Claim. He claims that there have been breaches of the fourth data protection principle, which requires accuracy. He points primarily to the inclusion in his physiotherapy notes of the year 2009 (as opposed to 2010) for the onset of his symptoms as being an infringement. But Ms Wilson highlights the terms of Sched. 1, Part II, para. 7:

"The fourth principle is not to be regarded as being contravened by reason of any inaccuracy in personal data which accurately record information obtained by the data controller from the data subject or a third party in a case where –

(a) having regard to the purpose or purposes for which the data were obtained and further processed, the data controller has taken reasonable steps to ensure the accuracy of the data, and

(b) if the data subject has notified the data controller of the data subject's view that the data are inaccurate, the data indicate that fact."

She submits that there is thus no contravention of the relevant principle.

27. Alternatively, Ms Wilson points to s.13(3) of the Act, which provides a defence where the data controller has taken such care as in all the circumstances was reasonably required to comply. It is hard to see how that could fail in view of the Defendant's compliance with the official guidance to which I have referred (at para [3] above).
28. It seems that the Claimant is also relying at paragraph 119A on two other allegedly inaccurate claims, namely (i) that Ms Waghorn was not his solicitor and (ii) that Ms Harris left a voicemail. This is not sustainable, however, since neither point would count as "personal data" within s.1(1) of the Act.
29. In this instance, the application can be determined on the facts as they stand. It seems that the Defendant must succeed on these data protection pleas and I will grant summary judgment.
30. As I noted earlier, objection is taken to the insertion by the Claimant into the Amended Particulars of Claim quite new claims in malicious falsehood (at paragraphs 144-149) and under the Human Rights Act 1998 (at paragraphs 120-129). He would need permission for such fundamental changes. It would not be right to bypass the necessary formalities and to try and deal with these matters on the Defendant's present application. I will not, therefore, make any comment on the merits of the proposed new claims, but it should certainly not be assumed that permission will be granted.
31. The Defendant is entitled in my judgment to recover its costs incurred in meeting the claims contained in the original pleading which have now been abandoned. These include misfeasance in public office, wrongful disclosure under the Data Protection Act and, in the context of slander, the Claimant's previous reliance on s.2 of the Defamation Act 1952 and upon the suggestion that the words complained of imputed a criminal offence. (Technically, the claim for misfeasance has not been discontinued and it should thus, following abandonment, be struck out.) I will hear any submissions on a draft bill of costs, but it would seem right in principle that a payment on account should be made in respect of these items.
32. I will also hear submissions on any directions as to the future conduct of the proceedings, including whether it is appropriate to transfer to the county court. These matters can only be addressed now that the parties are aware of the above rulings.